A collective membership mark is a type of non-commercial trademark used to identify and associate with something or someone. In February 2019, a California district court ruled that the government could not forcibly seize from the Mongols Motorcycle Club their prized collective membership marks, seemingly halting a ten-year legal tug of war. The court held that forfeiture of these marks was not only unconstitutional, it was illogical.

This Comment explains how and why expressive marks like the Mongols’ should not be automatically deemed off limits to the government. It proposes a trademark-specific doctrine to help courts draw a constitutional line between free speech and commercial speech, and a change to the Lanham Act to address trademark forfeiture. Clear guidelines for forcible transfers of marks are needed in order to balance law enforcement objectives, fundamental rights, and the goals of trademark laws in the foreseeable future.